159 / 192
11.29
In the case of AAB No. 22/2000, the complainant made a data correction request to his
ex-employer regarding allegations made against him in his letter of termination. The
Commissioner took the view that in refusing to amend the letter of termination as
requested, the employer was not in breach of section 23(1). On appeal to the AAB, the
AAB upheld the Commissioner’s view that the Ordinance was inapplicable to the case.
In particular, according to the AAB, if the employee was dissatisfied with the grounds of
termination, he should seek to resolve the dispute through other legal channels, such as
taking the case to the Labour Tribunal. In this respect, the Commissioner could not
assume the role of a presiding officer of the Tribunal in deciding the validity of the
grounds of termination.
3
11.30
Statements made by an appraising officer in a performance appraisal report about the
performance of the appraisee may consist mostly of expression of opinions (such as on
the appraisee’s competence) and partly facts (such as the job duties and work
performed by the appraisee). Where a data correction request is lodged and the data
concerned is an opinion, it is unlikely and always impracticable that the accuracy of the
opinion expressed can be objectively verified. On the contrary, if the dispute is about a
fact, it is easier to gather evidence to ascertain whether the data is inaccurate. In
refusing to comply with a data correction request, a data user must have reasonable
justifications.
11.31
In AAB No. 12/2008, an employee complained to her employer claiming that she had
received unfair treatment from her supervisor. Upon investigation, the employer found
that the employee’s complaint was not substantiated. The employee subsequently
made a data access request to the employer for a copy of all her personal records and
the employer complied with the request. After receiving the documents from her
employer, the employee complained to the Commissioner against the employer,
claiming that there were sixteen “incorrect facts” in the documents. The Commissioner
considered that the alleged “incorrect facts” concerned essentially employment
disputes relating to unfair treatment and discrimination, and it was not for the
Commissioner to resolve the disputes on errors of facts. The Commissioner decided not
to carry out an investigation. On appeal, the AAB agreed that the Commissioner was
not empowered to investigate such matters relating to the employee’s employment.
11.32
A similar approach was adopted in AAB No. 74/2011. The case concerned the making
of a data correction request by an ex-member of a religious community about the
comments expressed about him in two reports in connection with termination of his
membership. The AAB commented as follows:
43. … We are troubled by the fact that the present appeal seems to be one motivated not by
concerns of one’s privacy, but by personal feud. … The Appellant needs to understand that it
is not the purpose of the [Ordinance] to help a person in his personal vendetta against another
person or organisation. Rightly or wrongly, the [religious community] has made a decision to
remove the Appellant’s name from its member roll. No doubt this decision was based on a
number of considerations, not just the 2 Reports. It is not for the [Commissioner] or [AAB]
whether by means of data correction requests or otherwise, to make the [religious community]
3
In
AAB No. 8/2015
, the AAB also agreed with the Commissioner that it was not grounds for using a data correction
request to compel a doctor to change his opinion, as stated in a letter about terminating the doctor-patient relationship
and the reasons for using a data correction request.